the age of a witness can be determined by the jury solely from his personal appearance has been variously decided. Some cases hold that his personal appearance, aside from direct oral or writter proof, is competent to go to the jury," while others support the contrary proposition.32 But evidence is not admissible to show that the defendant was ignorant of the age of the female, or that he believed or had good reason to believe that she was over the age of consent.33 A family Bible in which the girl's parents entered the birth of the child within a year after the birth and which has ever since been in his possession is competent.** This is also true of a piece of paper kept as a record of births in a family when the entries were made by strangers at the request of the parents who were unable to write and the person who made the entry could not be found.35 For a Bible or other family record is not the best proof of birth or age where the person who made the record is alive, competent to testify and can be reached by a subpoena.

36

§ 343. Abduction for purposes of prostitution or concubinage.— When a statute provides that the taking must have been for purposes of prostitution, the evidence must show beyond a reasonable doubt that the accused intended to cause the female to enter upon a life of indiscriminate sexual intercourse.37 It is not

33

People v. Dolan, 96 Cal. 315, 31 Pac. 107; State v. Johnson, 115 Mo. 480, 494, 22 S. W. 463; Riley v. State (Miss., 1896), 18 So. 117; but cf. contra, Mason v. State, 29 Tex. App. 24, 14 S. W. 71, and State v. Houx, 109 Mo. 654, 19 S. W. 35, 32 Am. St. 686; Lawrence v. Commonwealth, 30 Gratt. (Va.) 845; State v. Newton, 44 Iowa 45.

34

37

Osborn v. State, 52 Ind. 526. The intention to have sexual intercourse may be inferred from the making of a proposition for it, or from an attempt to procure it by force. Huff v. Commonwealth (Ky.), 37 S. W. 1046, 18 Ky. L. 752. It is not material to prove or allege the actual accomplishment of the purpose of the accused in this respect. State v. Bobbst, 131 Mo. 328, 32 S. W. 1149, 1151; State v. Knost, 207 Mo. 18, 105 S. W. 616; Elliott Evidence, §§ 2745, 2746; State v. Fleetwood (Mo., 1909), 122 S. W.

Simpson v. State, 45 Tex. Cr. 320, 696. 77 S. W. 819.

38

enough to show that he, or some third person, intended to have intercourse with her occasionally." Direct evidence that the accused intended to devote his victim to purposes of prostitution is not required. This intent may be inferred from evidence that the woman was taken from her home by a prostitute and her companion directly to a house of prostitution, and from evidence that, prior to the abduction, illicit relations had existed between the parties.*

41

42

40

Some statutes provide for the punishment of abduction for purposes of concubinage as well as prostitution. Concubinage may be defined as the informal and illicit cohabitation of a man and woman as husband and wife without being such. Proof of a single act of sexual intercourse is enough when the other material elements of the crime are proved. No length of time or long continuance of illicit intercourse is necessary. The concubinage exists as soon as the single woman consents to unlawfully cohabit with a man generally, as though the marriage relation existed between them, without any limit as to the duration of such intercourse and actually commences such cohabitation. 13 Under an indictment for abducting a chaste woman for the purpose of prostitution specifying only one house of prostitution to which she was taken** it may be proved that she was taken to

38 State v. Gibson, 11 Mo. 92, 19 S. W. 980, 982; Commonwealth v. Cook, 12 Met. (Mass.) 93; State v. Brow, 64 N. H. 577, 15 Atl. 216; Osborn v. State, 52 Ind. 526, 528; State v. Stoyell, 54 Me. 24, 27, 89 Am. Dec. 716; State v. Ruhl, 8 Iowa 447; United States v. Zes Cloya, 35 Fed. 493; State v. Jamison, 38 Minn. 21, 23, 35 N. W. 712; Haygood v. State, 98 Ala. 61, 13 So. 325; Henderson v. People, 124 Ill. 607, 612, 17 N. E. 68, 7 Am. St. 391; State v. Wilkinson, 121 Mo. 485, 486, 26 S. W. 366. The principal element is the taking away and the purpose of the taking and subsequent cohabitation or sexual intercourse is not essential to be proved, but are merely evidence of intent. State v. Tucker, 72 Kan. 481, 84 Pac. 126.

40

People v. Carrier, 46 Mich. 442, 447, 9 N. W. 487, or subsequently, State v. Johnson, 115 Mo. 480, 495, 22 S. W. 463; People v. Claudius, 8 Cal. App. 597, 97 Pac. 687.

41 State v. Gibson, III Mo. 92, 19 S. W. 980, 982; State v. Gibson, 108 Mo. 575, 18 S. W. 1109, 1110; State v. Overstreet, 43 Kan. 299, 23 Pac. 572; People v. Spriggs, 119 App. Div. (N. Y.) 236, 104 N. Y. S. 539.

other houses as showing the purpose of the accused in the abduction.

45

46

§ 344. Abortion at common law and by statute distinguished.—It was not a crime at common law to operate upon a pregnant woman for the purpose of procuring an abortion unless she were actually quick with child.*** But if this were the case an abortion was a misdemeanor at common law. So, anciently, if a woman quick with child killed it herself, or was beaten so that she was delivered of a dead child, it was not murder. The same principle applied when the acts with an intention to produce an abortion were by another. Even when the mother died as a result of an attempt to procure an abortion, the killing was not regarded as murder, for the death was collateral, and aside from the principal design and the procurement of the abortion was not a felony. These rules are now generally changed by statute. It is now equally criminal to produce abortion before and after quickening, and if the statute, as is usually the case, makes an abortion a felony, then the death of the woman as a result of the subordinate crime is murder.48

47

§ 345. Intention to produce an abortion-Evidence of other crimes. -An abortionary intent must be proved.* Evidence of an as

"a Commonwealth v. Farker, 9 Met. (Mass.) 263, 43 Am. Dec. 396; People v. McDowell, 63 Mich. 229, 30 N. W. 68; State v. Cooper, 22 N. J. L. 52, 51 Am. Dec. 248, and compare contra, State v. Fitzgerald, 49 Iowa 260, 31 Am. 148n; Smith v. State, 33 Me. 48, 54 Am. Dec. 607; Commonwealth v. Wood, 11 Gray (Mass.) 85. 45 State v. Slagle, 82 N. Car. 653; Commonwealth v. Demain, 6 Pa. L. J. 29, 3 Clark (Pa.) 487.

46 Smith v. State, 33 Me. 48, 53-60, 54 Am. Dec. 607. See this case for a thorough discussion of the meaning of miscarriage. See, also, State v. Cooper, 22 N. J. L. 52-58, 51 Am. Dec. 248; Mitchell v. Commonwealth, 78 Ky. 204-210, 39 Am. 227; Com

49

monwealth v. Surles, 165 Mass. 59, 42 N. E. 502.

47 But see State v. Dickinson, 41 Wis. 299.

Slattery v. People, 76 Ill. 217, 220. Proof of motive, Elliott Evidence, § 2762; advising or administering, sufficiency of proof, § 2763; effect on woman, consent, § 2764; proof of nature of means used, § 2765; proof of pregnancy, § 2766; proof of opportunities and facilities, § 2767; proof of similar acts, § 2768; corroborative proof, § 2769; testimony of accomplice, 98 Am. St. 179; evidence of other crimes, 62 L. R. A. 229, note.

Elliott Evidence, §§ 2760, 2761; 62 L. R. A. 229, note.

sault or beating alone is not enough, though a miscarriage actually should ensue as a result thereof.50 If an intention to produce an abortion is shown, it is immaterial that the means employed did not and could not have produced the result intended,1 and even though it conclusively appear that the abortion resulted from other means.52 Evidence that the accused prior, or subsequently, to the act alleged, had attempted to procure an abortion on the same woman,* using the same or different means, or that on other occasions he had operated on other women," or held himself out as being able and willing to commit an abortion, is always admissible to show his purpose and intention in connection with the act charged."7

56

58

53

55

$ 346. Victim of abortion is not an accomplice-Corroboration when required.—The woman on whom an abortion is performed is not an accomplice, as she cannot be indicted for the same offense as the accused. But the fact that, from a moral point of view, she is implicated in the crime may be considered by the jury as bearing on her credibility.59 A person is not an accomplice

State v. Fitzgerald, 49 Iowa 260, 262, 31 Am. 148n.

51 Commonwealth V. Corkin, 136 Mass. 429, 430; People v. Seaman, 107 Mich. 348, 65 N. W. 203, 61 Am. St. 326; State v. Gedicke, 43 N. J. L. 86; State v. Hollenbeck, 36 Iowa 112; State v. Fitzgerald, 49 Iowa 260, 31 Am. 148.

62

Clark v. People, 224 Ill. 554, 79 N. E. 941.

7 State v. Smith, 99 Iowa 26, 68 N. W. 428, 61 Am. St. 219; Commonwealth v. Wood, 11 Gray (Mass.) 85, 93; Commonwealth v. Boynton, 116 Mass. 343, 345; Commonwealth v. Follansbee, 155 Mass. 274, 277, 29 N. E. 471; Dunn v. People, 29 N. Y.

2 State v. Morrow, 40 S. Car. 221, 523, 527, 86 Am. Dec. 319n; State v. 18 S. E. 853. Vedder, 98 N. Y. 630, 632; People v. 53 Commonwealth v. Brown, 14 Gray Hodge, 141 Mich. 312, 104 N. W. 599; Clark v. People, 224 Ill. 554, 79 N. E. 941.

(Mass.) 419, 432.

Scott v. People, 141 Ill. 195, 30 N. E. 329; Commonwealth v. Corkin, 136 Mass. 429.

**Lamb v. State, 66 Md. 285, 287, 7 Atl. 399, 67 Md. 524, 10 Atl. 208, 298; Scott v. People, 141 Ill. 195, 213, 30 N. E. 329; State v. Crofford, 121 Iowa 395, 96 N. W. 889; People v. Hagenow, 236 Ill. 514, 86 N. E. 370. See, also, Underhill on Ev., §§ 9, 10.

60

who procures an anesthetic which is administered to the victim, if it is not shown that he knew the purpose for which it was used. Nor is a woman an accomplice, who, being an intimate friend and confidant of the deceased, knew of her pregnancy and her desire for relief, and accompanied her to the defendant's house, when she did not aid or advise the defendant, and was not present when the crime was committed. 61 Because of the

confidential and secret character of the relations existing between physicians and their female patients, and, also, on account of the great danger to which physicians would be exposed if an accusation of the crime of abortion committed on a patient could be sustained by the uncorroborated statement of the latter, it has been enacted by statute that a physician shall not be arrested, indicted or convicted of abortion on the testimony of the woman alone. Her testimony must be corroborated in respect to some material facts which constitute a necessary element in the crime, as, for example, the use of an instrument and the intent.62 Very frequently several defendants are jointly indicted for the abortion. In such a case the criminal liability is several as well as joint, and one defendant may be convicted and the other acquitted. Hence, criminatory evidence may be received against either, though the state shall fail to connect the other with it."

§ 347. Necessity for the operation-Burden of proof.-Whether the abortion was necessary to save life is a question for the jury to determine, principally upon the facts involved in the victim's illness. The opinion evidence of physicians to its necessity, though desirable, is not indispensable." The burden of establishing that the abortion was actually necessary, or that the

60 Commonwealth v. Follansbee, 155 Mass. 274, 29 N. E. 471.

People v. McGonegal, 42 N. Y. St. 307, 314, 17 N. Y. S. 147, 62 Hun (N. Y.) 622, aff'd without opinion, 136 N. Y. 62, 76, 32 N. E. 616. Contra, People v. Spier, 120 App. Div. (N. Y.) 786, 105 N. Y. S. 741.

62

398.

65

Hatchard v. State, 79 Wis. 357, 361, 48 N. W. 380.

People v. McGonegal, 42 N. Y. St. 307, 313, 17 N. Y. S. 147, 62 Hun (N. Y.) 622, without opinion; Bradford v. People, 20 Hun (N. Y.) 309; Elliott Evidence, § 2771, but cf. contra, State v. Clements, 15 Ore. 237. People v. Josselyn, 39 Cal. 393, 246-249, 14 Pac. 410, citing 1 Greenl., § 78, and State v. Wells (Utah, 1909), 100 Pac. 681, is also contra.

Baker v. People, 105 Ill. 452, 456.